I.

The Judge- decision maker + models

A. Judicial Positioning
B. Judicial Selection
1. Appointment- insulates the judges more from the public, BUT
could mean less responsive to the times/society needs
2. Election- can put pressure on judges to conform to societal
views, popular opinion
C. Judicial Qualification
1. Education
2. Judicial Authority/roles
a. Formalism- bound by structure in place, strict
interpretation
b. Realism- normative theory, use structure in place but to
apply to new situations
c. Diversity
D. Judicial Disqualification
1. Experience v. Bias
2. Statutes
a. 144 actual bias necessary- party files affidavit alleging
bias judge decides
b. 455 impartiality might reasonably be questioned a
judge may disqualify themselves if their impartiality
may be reasonably questioned
i. personal
ii. extra-judicial
3. Hataley (691)- native American/Navajo livestock killing
a. Judge too partial, used personal feelings+ was improper
 4. PA v. Lu (691)- civil rights “being black”
a. Did not recuse, union made motion to push judge to
appear more fair
5. Haines- tobacco case
a. Would be proper but for inflammatory language
 Need clear separation from advocacy, professionalism and
personalism, values
II.Due Process
A. Opportunity to be heard: to assure fundamental fairness
1. Hamdi v. Rumsfeld
a. Matthews Test
i. Private interests- right not to be detained
ii. Government interests- cost of providing more
procedure
iii. Balance the two interests- “risk of erroneous
deprivation”
b. Criticisms:
i. Thumb on the scale, easy for judge to do what
they want, subjective
ii. Usually in favor of gov
c. Government hearsay evidence allowed
2. Lassiter- As the interest in liberty goes down right to
appointed counsel also goes down.
a. Scarpelli precedent: case by case
b. Used “form” of Matthews test to determine ruling
c. Major dissent
B. Prejudgment remedy cases
 1. Sniadach- prejudgment wage garnishment without due
process is unconstitutional
a. Decision: “right to be heard had little worth unless
notice was given to individual that matter was pending
so they can choose to appear, default, contest etc.”
2. Fuentes v. Shevin- Stove and stereo taken by “writ of
replevin” without any notice before seizure of property
a. Decision: extended Sniadach line to cover more
property than just wages. Prejudgment “replevin”
without notice or opportunity to be heard violates due
process.
3. Mitchell- Appliances seized under sequestration, 2 years after
Fuentes (similar case) Distinguished* from sniadach
a. Decision: property seizure OK where…
i. Judge issues order (NOT clerk)
ii. Prompt post-seizure hearing
iii. Informative notice
4. Di-chem- Bank account seizure, issued by clerk without notice
a. Decision: property seizure NOT OK where…
i. No judge issues order
ii. NO prompt post seizure hearing
iii. NO informative notice
5. MOST state legislatures adopted:
a. Informative notice
b. Hearing
c. Judicial involvement
6. Doehr- (20 years later)- lien on house, extended to cover real
property, nonphysical taking of property.
C. Notice due
RULE 4:
 1. Notice must be reasonably calculated to achieve actual notice,
under all circumstances
2. Notice must apprise interested parties of the pendency of the
action
3. Notice must afford them an opportunity to present objections
Constructive Notice: Can meet minimum constitutional
requirements, whatever evidence is present can be reasonably
construed to be notice (they should have known, can infer that
process was given)
Actual Notice: NOT a constitutional standard, Service where
person actually knows they are being served.
Actual-------------------------------------------------Constructive
Serve party serve occupant mail posting publication

Mullane standard: Notice must be reasonably calculated under all

circumstances to apprise all interested parties of the pendency of
the action.

4. Greene (Mullane)- Posting notice on doors in projects

a. Decision: If you learn notice is not working, you must
give more notice. Reasonably calculated NOT actual
notice
 Knowing posting in projects unreliable, etc.
 Giving notice by mail would not be overly
burdensome
a. Dissent: value of speed, mail also risky
5. Jones v. Flowers- USSC ‘06)
a. Decision: Government must use different
methods/forms of notice when it knows its methods are
not working (reasonably calculated alternative)
i. NOT required to ensure/investigate to determine
if it worked. BUT…
ii. IF they find out/ know for certain the method is
not working the NEED to find an alternative
6. Rule 4: Sets out how to give constitutional notice
a. who does serving? [4(c)]
 i. any person at least 18 not a party to the suit
[4(c)(2)]
ii. federal court marshall [4(c)(3)]
iii. by mail, by professional hired to seek out and
serve defendants
b. Hague convention: requires member countries to
establish “central authority” to receive notice from other
countries
c. “Headquarters agreement”- corporations agreement
with states in which they have headquarters. Service of
notice is prohibited upon headquarters without express
consent of leadership of the company
7. Khashoggi
a. Service must be made by leaving a copy of summons
and complaint at the individuals dwelling or usual
place of abode- 4(e)2(b)
i. Sufficient indicia of permanence-
 investment,
 listing it as bail address,
 spends sufficient time there,
 listing as contact current contact info,
 actually being there. *can have more than
one usual place of abode*
8. Mid-Continent [7th circuit 1991]- Harris never paid Mid-c for
wood bought, & did not follow through on promissory note.
Harris requested relief from default judgment under 60(b)4
a. 60(b)4- motion to vacate judgment if void
“3 leg stool” for valid judgment requires:
i. Notice
ii. Personal jurisdiction
iii. Subject Matter jurisdiction
b. Strict compliance with Rule 4 necessary!--> NOT
“substantial compliance”
c. Actual notice does not suffice
 i. Had been sending notice to wrong address does
not count as technical error
ii. VALID service necessary to exert PJ over a
Defendant
9. Wyman- improper conduct (trick) to effect service of process
not acceptable. Wyman was seduced into the jurisdiction and
served.
a. Fraudulent process leading to faulty judgment in one
state does not need to be upheld by another.
III. Personal Jurisdiction
← Why Does the Forum Matter?
 Trouble retaining counsel in distant location, settle prematurely, not
properly paid, etc.
 Burden of travelling & communicating over long distances
 Ct./ jurors may be sympathetic to regional areas

A. Bright lines/state lines

1. Pennoyer
a. Valid service within the state establishes jurisdiction
b. PJ based upon presence
i. Pennoyer was good-gave clear bright line rule
ii. Pennoyer was bad- impractical, spcietal changes,
pressure builty to extend beyond border w.
growing econ, coprs etc
B. Bases for Personal Jurisdiction
1. Presence- being in the state “gotcha” ( as long as not
fraudulent)
2. Consent- saying PJ is ok within the state/showing up in court
3. 3 kinds of Personal Jurisdiction
a. In personam- in person
 b. In rem- property related to the case, court attaches in
order to exert PJDX
c. Quasi in rem- property not related to case (Shaffer 
eliminated)
4. Judgment void without 3 prongs 60(b)4 – notice, PJ, SMJDX
5. Non-resident JDX- how do you get it?
a. Appearance in the state
b. D consent
c. D agrees in advance to jdx
d. By contract
e. Activities in or affecting the state:
i. Domicile of individual
ii. State of incorporation of a corporate D
iii. Minimum contacts analysis!
C. State boundaries leak
1. International Shoe: Minimum Contacts Analysis
a. Is the exercise of PJ constitutional?  MCA
i. Tally contacts between D and forum state
(nature and quality of contacts)
 Substantial & continuous & systematic
(general) no need for step 2/3
 Continuous & systematic (specific)
 Isolated & irregular (specific)
←
 b. Nexus between contacts and the matter in the suit
c. Fairness: would asserting jdx over D be overly
burdensome when weighed against P’s interests + those
of the forum state?
 Long arm statutes: defined circumstances under which a state
can attempt to assert jdx over a non-resident
o 1 step- whatever is constitutionally allowed (CA example)
o 2 step- State imposed limitations, constitutionally allowed
(Oklahoma example) state law  then constitution
o quasi 2-step: appear to have 2 steps analysis but really just 1
step, they are =
o statutory analysis ALWAYS first because constitutional issues
don’t matter unless a state actually purports to exercise jdx
 General jurisdiction: jdx over person or any matter ,lots of
contacts w/ state, dispute blind- regardless of nexus
 Specific jurisdiction: Nexus is important, dispute specific,
contacts must be tied to what suit is about
o
2. World Wide Volkswagon: foreseeability critical to due process,
’s conduct and connection to forum state are such that he
should reasonably expect to be haled into court there.
a. Purposeful availment
i. D avails himself to benefits of the state
ii. Intent to avail, not just knowledge
b. Forseeability
i. Forseeable that D will be haled to court of the
forum state
ii. Stream of commerce
3. Why is forum important?
a. Some forums have reputations for better pay outs
b. Some attorneys feel more comfortable with fed or state
c. Bias in state
 d. Burden on P’s, where is all the evidence? Where did
accident happen?
4. Hustler
a. If you distribute widely, likely chance there will be
jurisdiction over you
5. Calder v. Jones
a. Content was expressly aimed at P, therefore magainze
(nat’l enquirer) should have reasonably expected the
litigation in her home state.
6. Asahi: 4-4 split plurality
a. Fairness: 5 factors: (134-135)
i. Burden on D
ii. Interests of forum state
iii. Interests of P
iv. Interstate judicial system’s interest in efficient
resolution
v. Shared interest of states in fundamental social
policies
 Further developments…
7. Shaffer (163)
a. Decision: All assertions of state-court jurisdiction must
be evaluated according to the standards set forth in
Shoe and its progeny
b. ALL assertions of PJDX must go through MCA
analysis no nexus THUS NO QUASI IN REM
c. Property not related to the case cannot be used to
satisfy personal jurisdiction requirements, NO NEXUS
under SHOE  NO QUASI IN REM
8. Burnham: can presence in forum even for short time allow for
pjdx?
a. Tag jurisdiction is OK- unclear reasoning
i. Either we don’t need MCA OR…
ii. It survives MCA scrutiny
 iii. NO fraud however
9. Zippo
a. Sliding Scale Test (internet) PJDX dependent on nature
and quality of commercial activity over the internet
 Active -------------------------------------------Passive
← Degree of commerce ,interactive source of info/simple/ no
links
 Ebay (active)
 Simple info page- no links/clickability (passive)
←
← IV. Subject Matter Jurisdiction
 Diversity jdx
 Federal question jdx
-State courts: general jurisdiction (broader)
-Federal courts limited jurisdiction (specific subjects/concerns) litigated in
fed court
- Fed law v. state law fed law rules under supremacy clause
- Must have either diversity or federal question jurisdiction to get to
federal court
A. Diversity jurisdiction: to prevent bias to one party (home court
advantage) allows D to remove (§144 removal statute) from state
to federal court
1. Constitutional minimum: at least one P and one D are citizens
of different states
2. Statutory Requirement (real requirement) sec. 1332:
Complete diversity of all D’s and all P’s
3. If amount exceeds $75,000 AND diversity jurisdiction, fed
court can exercise jdx
 Diversity is based on citizenship
 a. Citizenship= where you are domiciled=
i. Residence (+)
ii. Intent to remain
 Useful to show indicia of permanence “similar to
4e2B “dwelling”
 Mas: Example of the rule
 Tanzymore: example for kinds of evidence used to
establish intent to remain
b. Corporate citizenship: where business is incorporated & where
its primary place of business is (fully present in both places)
←

←
←
B. Federal Question Jurisdiction
← Sec 1331 Justice Holmes: “arising under” jurisdiction  cause of action
“arises under” federal statute (arising under constitution, laws, treaties of
the US)
 Fed Q must have substantial and direct bearing on the case
 If case involved fed statute you CAN bring suit in fed court but you
don’t have too
o States have concurrent power over everything except those
matter that fall within exclusive judicial authority
  Franchise tax board: fed question must be necessary (essential to
the case, cannot resolve without), substantial (not frivolous, not
an easy Q to answer, fed courts have experience with it), and in a
well pleaded complaint.
← A SPECTRUM is created
 VERY NARROW: Federal statutes should explicitly create a
private cause of action
o If there is no private remedy stated in the statute, then no
jdx
 Broad View – If you have to look at fed. law, then okay for federal
court. In Osborn this is the “ingredient” test
←
1. Private rights of action (PRoA)- cause of action
i. Explicit PRoA- on its face says private party may bring federal
suit
ii. Implicit PRoA- Can see congressional intent to provide PRoA
but it is not explicitly states in statute
 CORT factors
i. Is a member of a special class to be protected
ii. Legislative history of intent to create PRoA 
often dispositive
iii. Would finding PRoA frustrate the purpose of
legislative scheme
iv. Whether implying PRoA is inappropriate b/c
subject matter involves area basically of concern
to the states (÷ of labor)
2. IF NO PRoA: (under explicit or implicit) can still get fed jdx
depending…
GRABLE factors
i. Necessary federal question a ? that must be resolved to
dispose of the case
ii. “Substantial” question a complicated ? that is better dealt
with by federal judges
iii. Would the JDX upset the ÷ of labor between state and federal
courts?
  Court looks at missing PRoA as missing welcome mat
NOT missing key
 Mottley (P), 1908 (pg. 234)
o F/I: Mottley (π resident of Kentucky) sued Louisville over
breach of contract (which is not a fed question). Fed.
question only existed in π’s anticipated defense.
o USSC takes it upon themselves to address issue of fed.
question jdx. They disregard other 2 issues in case b/c entire
thing gets thrown out w/o proper jdx.
o Well Pleaded Complaint – “a suit arises under the Constitution
and laws of the United States only when the P’s statement of
his own cause of action shows that it is based upon those
laws or that Constitution. It is not enough that the P alleges
some anticipated defenses to his cause of action.”
o Bright-lined rule to take from Mottley: In a well
pleaded complaint, the federal question does not
appear only in anticipated defenses, needs to be in
original claim at minimum.
3. Merrell Dow: federal issues are necessary and substantial when
congress creates a PRoA seems to mean PROA is required in order
to have fed question jdx NO! Grable if it doesn’t upset division
of labor JDX is appropriate even if no explicit or implicit cause of
action
i. Merrell had bright line rule Grable answered with contextual
analysis standard
ii. Necessary: federal law is essential; case cant be disposed of
w/out the federal question (if you can go around it-its not
necessary)
iii. Substantial: not straightforward, direct or obvious federal
question; ambiguous, has not been litigated before; complex;
state cant deal with it on its own
← EITHER WAY MUST HAVE A “WELL-PLEADED COMPLAINT” !!!!
4. A claim that on its face has a federal question and it cannot only
appear as anticipated defenses.
←

←
← PLEADING AND RESPONDING:
A. PLEADINGS
1. Form 11: Document that frames a lawsuit; the P’s complaint, the
D’s answer and possibly the P’s reply to new matters raised in the
answer.
B. The complaint:
1. RULE 8:
o A pleading that states a claim for relief must contain”
i. Short and plain statement of ground for subject matter
jdx
ii. A short and plain statement of the claim showing that
the pleader is entitled to relief
iii. A demand for relief sought
o Rule 8(f)- all pleadings shall be so construed as to do
substantial justice
o Conley v. Gibson:
i. Black employees suing union for not representing them
against RR discriminatory practices
 ii. Complaint was valid b/c it adequately set forth a claim
and gave respondent fair notice of its basis under Rule
8(a)(2).
iii. Only need to show inferences not facts
o Notice pleading: a complaint should not be dismissed unless
it appears beyond a reasonable doubt that the P can prove no
set of facts in support of the claim that entitles him to relief.
o Dismissal under 12(b)(6) motion to dismiss for
i. factual insufficiency- plead self out of court, fail to meet
notice pleading
ii. legal insufficiency – no law to give you remedy

Makes it easier to get to court (for deserving P’s);
lowest most permissive standard (specific facts
not required)
 Court assumes allegations to be true and draws
all inferences in P’s favor
 Makes discovery really important
o American Nurses:
i. Judge Posner thinks Conley standard too broad and
permits dismissal of only frivolous cases.
ii. Complaint must make good argument; he sets high
substantive standard for employment discrimination law
iii. Must be able to infer from complaint that it at least has
one legal theory that could justify a request for a
remedy, if the facts are as alleged.
 “shotgun pleading”
 Posner had to accept complaint under Conley, but
didn’t want to
 12(e): motion for more definitive statement
o Swierkiewicz: 2002 USSC emphasizes that rule 12(b)(6)
[failure to state a claim] does not allow dismissal based on a
judges disbelief of a complaint’s factual allegations. (AKA
Conley IS still good law and judge cant dismiss based on
his disbelief of the facts)
i. Don’t need specific facts to establish prima facie case
 ii. Plausibility standard only applies to holding-doesn’t
matter if judge doesn’t believe
o Twombly: 2007 USSC Claims must cross the line between
possible to plausible. Judge need not find a claim IF they do
not think that it is plausible.
i. Rule 8(a)(2): plain statement: to show pleader entitled
to relief
ii. Need enough facts to raise plausible suggestion of
conspiracy
iii. Specific factual allegations
iv. NO conclusory statements thrown out
2. FACT PLEADING:
o Weeding out/screening function; danger of judges with
crowded dockets screening out cases simply because they
don’t think they will succeed.
o Need more than labels; NO legal conclusions or formulaic
statements
o Need factual allegations; need more facts
o BUT court denies that this is heightened pleading standard..
they say it is still Rule 8 (still form 11)
o [negligence is a legal conclusion, but supposedly Form 11 is
still fine; they say this in Twombly
 Iqbal: clarifies Twombly…
o Iqbal: Twombly as a 2-step approach
i. Treat all factual allegations as true- but ignore
conclusory factual allegations (weeding out function)
ii. Then see whether whats left “states a plausible claim
for relief” (Twombly standard)
o Rule: UPHELD twombly, need fact pleading in new plausibility
standard, indifferent to informational asymmetry problem.
←
←

Believa Prevail? Fac

Ø Speculati
ble Ple t
on? adi
ng

Pleading Standard Spectrum

Notice std. Possible Plausibilit Probabl

Conley y std. e?
Form 11 Twombly
Benefit of Benefit of
doubt  π doubt  ∆

←
← PLEADING IN THE ALTERNATIVE:
1. Rule 8 (d)(2) a party may set out 2 or more statements of a claim
or defense alternatively or hypothetically, either in a single count or
defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is
sufficient.
2. Rule 8 (d)(3) a party may state as many separate claims or
defenses it has regardless of consistency.

3. McCormick v. Kopmann 1959: wife of man killed in truck accident

sues both other driver for causing accident and tavern for serving him
drinks that made him drive drunk. How can she sue for both?
o As long as she had no knowledge of the true facts. Pleading in
the alternative is justified.
 Must have genuine doubt as to what happened
o Cant recover from both claims but should be allowed to move
forward and present evidence to the jury
← AMENDING THE PLEADING:
1. Rule 15(c)(1)- relation back- only go here to keep something
within the statute of limitations [fact sensitive, context matters]
 a. An amendment related back to original pleading when the
amendment assert a claim or defense that arose out of
conduct, transactions, or occurrence set out in original
pleading
b. Must have a particular relationship to original pleading
 OK to amend and add more detail
 OK to add new events that caused same injury
 OK to add new legal theories from same set of facts
 NOT ok to add whole different set of conduct/facts
o 15(a): allows amendments to complaints anytime before the
filing of an answer, w/ answers you have 20 days after
original filing to amend.
 If D’s have filed answer but you want to amend
complaint, can go to judge & it may be allowed “as
justice so req.”
o 15(b): implied pleadings: if issue is implied but not included
you can add it
o 15(c)(3): adding plaintiff

c. Barcume: female police officers alleging discriminatory hiring

practices within SOL; then after extensive discovery and after
SOL had run out they moved to amend pleading to include
sexual harassment and hostile work environment.
 Court held: amended complaints DID NOT relate back
 Amendment MUST arise out of conduct,
transaction or occurrence
 New legal theories ok but new transactional facts
NOT ok
d. RULE: when a pleading is amended under rule 15 a new party
must be given notice and the opportunity to respond.
e. Amending the pleading:
 Rule 20(b) severing complaints
← SANCTIONS:
 Rule 11:
 Where does it apply?
 o Rule 11(a)- applies to pleadings written motions and other
papers filed with the court (NOT discovery 11(d))
 What does your signature mean?
o 11(b) by presenting these papers to the court you are
certifying that you formed an inquiry reasonable under the
circumstances
o 11(b)(2) any claims, defenses or legal contentions must be
warranted by existing law or by non-frivolous argument
[legal sufficieny]
o 11 (b)(3) factual contentions have evidentiary support… or
will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery [factual
sufficiency]
o 11 (b)(4) denials of factual contentions are warranted on the
evidence or… reasonably based on belief of a lack of
information [applies to answers to complaint or reply]
 What type of sanctions are given?
o 11(c)(1) anything appropriate [great discretion]
o 11 (c)(4) they are meant to deter repetition of the conduct or
comparable conduct (not punitive or compensatory); may be
monetary or nonmonetary, disbarment, bad reputation,
shaming
 Through what process can sanctions be imposed?
o 11 (c)(2) a party can move for sanctions; it must serve other
party but not file a motion until 21 days after service and only
if challenged paper has not been withdrawn or corrected
[“safe harbor”]
o 11(c)(3) the court can impose sanctions of its own initiative,
but first they give party opportunity to be heard (due
process); they do so with “an order to show cause” (aka safe
harbor)
o Sanctions must work to deter, not punitive
Nonmonetary sanctions okay
Law firms, attorneys, and clients may be sanctioned
Reasonable std. & case-by-case.
 Inquiry reasonable under the circumstances 11(b)
o Signature is like a warranty/promise that the court can rely
on; by signing a lawyer is certifying that the information is
correct
o Manuel Fragante: Rule 11 gatekeeping, may get past rule 8
but then rule 11, up to the judge what cases get in and which
are screened out… hard to tell if this was kind of case that
needed to be screened out. Fragante was trying tot change
the law and make society more fair.
o Business Guides 1991: Do your research before filing a claim,
signature denotes merit and documents signed should be
taken seriously as you are an officer of the court. Sanctions
were filed for failing to inquire about accuracy of claim.
 It is risky to file a claim simply based on belief of a
client, do the research.
o Kraemer 1990: Must make a reasonable inquiry in any way
possible. Rule 11 should not undermine zealous advocacy- not
intended to chill attorneys enthusiasm or creativity in
pursuing claims. Conspiracies are hard to prove due to
informational asymmetry, hard to make best inquiry without a
confession.
 Relevant factors in reasonableness inquiry: (Kraemer)
 Did signer have reasonable time for investigation?
 Extent to which attorney had to rely on his or her
client for factual foundation
 Whether case was accepted from another
attorney
 Complexity of facts and attorneys ability to do
sufficient pre-filing investigation
 Whether discovery would have been beneficial to
the development of the underlying facts
o Christian v. Mattel 2002:
 Truly frivolous case! Hicks deserved sanctions for NO
inquiry repeatedly
 Only had to look at back of dolls heads to see patent
dates and he didn’t and still brought claims
 Mattel’s lawyers offered safe harbor, Hicks flipped out
refused to look at heads let client make false claim
 2 prong inquiry:
i. Whether complaint is legally or factually baseless
from an objective perspective
ii. If the attorney has conducted a reasonable and
competent inquiry before signing and filing it
 Court sanctioned him, but abused powers by
sanctioning for past conduct, discovery abuses and oral
representations (NOT ok)
o “Later advocacy” 11(b) Oral representations CAN be
sanctioned IF it violates the certification requirement of 11(b)
by advocating baseless allegations (must relate to the written
documents signed, not just oral representations in general)
←
←

←
← DISCOVERY:
← The process by which parties learn the evidence relevant to the case
1. Tension between goals of discovery and cooperation and finding
truth VS. our adversarial system (both teams head to head not an
overall cooperative process)
2. Primary discovery tools:
o Informal: witness interviews, affidavits- sworn statements,
private investigators
o Formal:
 interrogatories-formal set of written questions required
to be answered to clarify matters of fact
 Depositions- testimony of witness taken before trial;
requests for admissions
  Admissions: set of statements sent from one litigant to
an adversary, for the purpose of having the adversary
admit or deny the statement or allegations.
 Rules of discovery
o Rule 26- duty to disclose
o Rule 27-32- depostitions
o Rule 33- interrogatories
o Rule 34- production
o Rule 35- Physical and mental examination of a party
o Rule 36- requests for admission
o Rule 37- Sanctions for failure to make disclosure or cooperate
 Rule 26(a)(1)(a) mandatory initial disclosure
o Parties obligation to disclose and not doing so can lead to
sanctions
o Evens the playing ground
o Favors getting the truth, exempts evidence used solely for
impeachment (kept aside as check on other party)
o Names, addresses up front of anyone who would have info
about the case
o Chalick: Wanted to add party after SOL because hospital had
not disclosed proper information and P had just found out
which Dr would should have been party to the suit. Court
sanctioned hospital under 37(c) for equitable estoppel
to not allow the D to rely on their unfair process aka P was
able to name correct Dr.Burns in the lawsuit.
← Scope of Discovery: 26-36
 Rule 26(b)(1)
o Gate-keeping effect regarding the evidence that gets before
the fact finder, the jury or the judge [even though the judge
has to look at it first to determine that]
 Rule 26(f) discovery conference, where a discovery plan is detailed
between parties and the court confirms them.
o For refusing to participate during discovery you can be
sanctions under 37(c)- mandatory sanction for not following
mandatory initial disclosures
 1. Blank v. Sullivan: women alleging discrimination at a law firm, they
submitted interrogatories about promotion processes for making
partner. D’s argue this was not relevant to the case. Court held IT
WAS relevant to the case and ordered the D’s to answer the
rogs.
o 26(b)(1) used to say “relevant to subject matter” NOW it says
“relevant to parties’ claims or defenses”
o Unduly burdensome or expensive: judges are required to
raise the matter of limits on its own before a party would
have to raise the issue 26(b)(2)(c)(i)-(iii)
 Too much discretion for judges?
 Or good to prevent parties from bad faith efforts to tire
the other side?
← PRIVILEGE:
1. Work product privilege: 26(b)(3)(a)- tends to be broadly
construed
o Broad view: (Aldman 2nd circuit) Work-product extends
protection of documents prepared because of litigation 
majority view
o Broader view: (DC Circuit) Test is whether they were
prepared based on an actual subjectively and objectively
reasonable belief that litigation was an even real possibility.
o Must be careful to use privilege log to ID documents and
communications in enough detail to explain why they are
privileged but not so much you give info away.
 Sanctioned if a party doesn’t participate in silent
privilege

2. Fact v. Opinion work product:
o A party can produce fact work product but only a lawyer can
produce opinion work product
o A lot of determinations are just up to judges discretion
3. Hickman v. Taylor 1947:
o Facts and truth are shared and allow privilege to protect
lawyer’s theories/abilities but NOT objective and necessary
facts
 o Adversary has no right to inquire onto the files and mental
impressions of an attorney: work product privilege
o RULE: Attorney cannot be required to provide opposing
counsel with written statements and mental impressions
w/out showing necessity or any indication that such
production would unduly prejudice or cause undo hardship.
 Policy args:
 No borrowed wits (other party doing all the work)
 Adversarial breakdown- if forced to turn them
over may not take notes or take bad notes on
purpose, wont rep client wel
 Inefficiency/unfairness
 Unprofessionalism of the bar/demoralization
 Opinions are special- court is concerned about
this
 Rules of discovery are to even the playing field
 If other side asks for your facts must disclose
 If they ask for your opinions/impressions--?
Shielded by work product privilege
 Rule 26(b)(3)(a) NOT absolute coverage of
fact work product, if party shows substantial
need for the information and cannot get it in any
other way without undue burden.
4. Attorney-Client privilege:
o The privilege promotes trust in the representational
relationship, thereby facilitating the provision of legal services
and ultimately the administration of justice.
o Elements of attorney-client privilege:
a. A Communication
b. From the client to the lawyer
c. Without the presence of others
d. For the purpose of seeking legal advice
o Upjohn v. United States 1981:
 o RULE: attorney client privilege may apply to communications
with lower level employees when the communication is
requested on order to be able to give corporations (as
entities) good legal advice
 A-C priv. used to only apply to top level of employees in
corporations, now extended to lower level employees to
eliminate “zone of silence” to help gain info.
 Only control group (top level) can waive privilege
 TEST:
 Communications at issue were made at direction
of corporate superiors in order to secure
legal advise from counsel
 Information not available from upper-echelon
management
 Communications concerned matters within the
scope of the employees corporate duties
 The employees themselves were sufficiently
aware that they were being questioned in
order for the corporation to obtain legal
advice.
5. Waiving attorney client privilege:
o Statements made to a third party are not covered
o Statement regarding committing a crime or tort are not
covered
o Statements about business practices that are not legal advice
are not covered
o Underlying facts discovered through other means are not
protected (wont immunize facts simply by telling them to a
lawyer)
o Privilege DOES extend beyond death of client.

← Spoliation: willfully destroying evidence

 RULE: lawyers and clients have an affirmative obligation to
preserve documents and other things that may be relevant to
pending and anticipated litigation.
  Zubulake: P suing her employer for discrimination. Lawyers placed
litigation hold to ensure preservation of relevant documents but
USB “lost” the emails, so the court imposed the rest of discovery
costs on USB but they continued to spoliate so then they gave them
an Adverse judgement-An inference for the jury that they can find
any evidence against them since they undermined the judicial
system.
 26(e) continuing duty to supplement disclosures and responses
← Electronic Discovery:
 Electronic records are discoverable
 Qualcomm 2008: qualcomm concealed 1000’s of documents that
established their liability.
o 37(a)(3)(A) motion to compel
o misconduct during trial: Q did not even bother to do simple
email search of peoples computers
o did not disclose what they had and were evasive in rogs
o misconduct after trial: Q denied evidence of emails until
finally general counsel admitted to and located 46,000
documents, THEY WERE SANCTIONED
o Conduct due diligence!!
← EXPERTS:
 Rule 26
o Rule 26(a)(2) & 26(b)(4): dedicated to governing expert
testimony
o 26(b)(4)(E)(1): other party must pay if they want to depose a
witness
o 26(a)(2)(B): types of info you have to turn over about expert
at trial
 opinions they’ll use & reasoning
 qualifications
 How much you’re paying
 Exhibits they’ll use
 Other cases they’ve testified on & what their opinion
was
 Berkey Photo inc.:
 o Did not disclose interim reports by Kodak expert had said all
docs were destroyed but really were in his briefcase, some
interim reports were negative, rule requires all reports to be
disclosed. Putting blinders on is a bad idea, disclose all
information even if negative. They were sanctioned and he
went to jail, case lost big time.
 Must be careful what info is shared with an expert, could act as a
waiver for privilege.
 Generally once a party to a suit retains an expert they cannot
change sides in the middle of the proceeding.
o The other side may depose the expert
 Cordy: P suing RR for injuries sustained during bike crash. Used an
expert, shared case details with him, paid him, he signed contract
(he returned money and went to other side)
o 2 prong inquiry:
 was it objectively reasonable for the first party who
retained the expert to believe that a confidential
relationship existed?
 YES
 Did the party disclose any confidential information to
the expert?
 YES, he knew their litigation strategy and had
read their notes
 Holding: P had every reason to assume they had
entered a confidential relationship with expert
 Policy: helps protect confidence parties place in system
of justice so they know witness cannot be sold to
highest bidder and confidence will be kept.
 Coates: P died of asbestos poisoning, got tissue samples tested for
experts of P and D. P wanted access to reports of D’s experts even
though they weren’t going to testify. D refused.  expert shopping
problem, using experts until you find an opinion you like and hiding
the other ones.
 o Under 26(b)(4)(B) need to release the reports, prevents
expert shopping by requiring everyone to give all reports to
the other side. If judge expects expert shopping can force a
disclosure of expert testimony even if not being used at trial.
o Under 26(b)(4)(D)(ii) exceptional circumstances- allows
a party who expects expert shopping to get access to non-
testifying experts reports if they cannot get them another way
and expect they are an undue burden.
← SETTLEMENT:
 Agreement to end a lawsuit without judgment (90% of cases settle)
o Pros:
Cheap, efficient
Judges like it b/c clear the docket faster, and not
subject to appellate scrutiny
o Cons:
 Cant appeal
 Don’t advance the law
 Parties don’t get their day in court (especially bad when
reason for going to court is not monetary but for
justice)
 Default American rule: each party pays the play, each responsible
for own costs UNLESS.
 Rule 68(d): If the judgment the P finally obtains is not more
favorable than the settlement offer they rejected, the P must pay
costs incurred after the offer was made.
o To promote settlement
o What does “cost” include
 Rule 54(d)(1): if you prevail in a civil case, other party pays your
costs unless 68(d) applies
 Chesny: §1988 states that a prevailing party may be awarded
attorney’s fees “as part of costs”, since congress expressly included
attorneys fees as “costs” available to P, such fees ARE subject ot eh
cost shifting provision of RULE 68
o 68 provides an incentive to settle
o doesn’t punish D’s who give fair settlements which are turned
down and then lose later (protects them from paying costs)
 o protects D’s even if unfair offer
o NOT really fair majority cared more about settlements
← SUMMARY JUDGMENT:
 Why motion for SJ even if you think it’s unlikely to win?
o Get facts/theory of other side (they will motion to oppose).
o Educates judge—look critically at other side’s case.
o Facts go on record—judge can say yes on certain issues.
o Courts might have more confidence issuing Summary
Judgment order than 12b6 (failure to state a claim) because
some discovery has already happened to base decision on.
o Partial SJ can be awarded.
o It’s like using expert witness—you might get the other side to
settle.
o If you’re ∆, you have nothing to lose. (more of a ∆ tool b/c if
you’re P haling ∆ into ct. & motion for SJ right away, it seems
unfair b/c you want to give ∆ chance to respond).
o Hussey: no reason why it has to be this way.
 Rule 56(c)(2): “Show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law”
o Still get a judgment; happens any time after discovery has
started
 Rule 56(h): if judge thinks SJ is in bad faith they can sanction
submitting party
 JMOL- judgment as a matter of law, P or D says evidence is weak,
rule as a matter of law…
 Rule 50(a): JMOL, before the trial ends
 Rule 50(b): JMOL at the end of trial
 Rule 56(f): request additional time for discovery
 Originally to “pierce the pleading” and create prompt decisions
 Adickes: movant must produce evidence negating a claim or
defense of the non-movant [movant must prove positively that on
no set of facts can the P prevail]
o Nonmovant must only show scintilla (tiny) of evidence for
SJ to FAIL
o Burden on movant
 o Shows skepticism of SJ
← Supreme court trilogy of SJ cases:
 Celotex: As long as movant can point out holes/absence of
genuine issue of material fact SJ can be granted.
o Nonmovant must show some evidence, MORE than scintilla
o Lower standard
o Burden somewhat shifted
 Matsushita: Movant must point out absence of genuine issue of
material fact for SJ to be granted.
o Nonmovant must show enough evidence that a jury could
find for nonmovant
 Nonmovant needs a lot fo evidence to avoid an SJ
(much higher standard than adickes- essentially a trial
needs to be conducted in judges head)
 Burden shifted to nonmovant
 Anderson: Movant must point out the absence of a genuine
issue of material fact for Sj to be granted.
o Nonmovant must show enough evidence that a jury could
find for movant by applying std. to be used at trial!
 Much higher standard than adickes, essentially must
have enough to win at trial to avoid an SJ.
 Burden shifted to nonmovant
←
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←
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Script 18/03/2013 21:12:00

← SCRIPTS:
←
← NOTICE
←
← PERSONAL JDX
←
← SUBJECT MATTER JDX
←
← COMPLAINT/PLEADING
←
← SANCTIONS
←
← DISCOVERY
←
← SETTLEMENT
←
 SUMMARY JUDGMENT